Legal Reality Newsletter 12/22/ A. D. 2011Posted: December 22, 2011
New York Times on Jury Nullification: Just Say No
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FIJA | 21 Dec 2011
Professor of law and former federal prosecutor Paul Butler trusts jurors over power-grabbing prosecutors.
Jurors Need to Know That They Can Say No
Published: December 20, 2011By PAUL BUTLER
IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer.
The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence.
Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime.
The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know.
Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams.
The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”
In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial. Since then, it’s been up to scholars like me, and activists like Mr. Heicklen, to get the word out.
Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.)
There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.
How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly because they were concerned about racially selective enforcement of the law.
Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the New York City police made 50,000 arrests just for marijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences. In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases. That is precisely the kind of power grab that the Constitution’s framers were so concerned about.
In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors “can ignore the law” if the law “is producing a terrible result.” He added: “I’m a big fan of the jury.” I’m a big fan, too. I would respectfully suggest that if the prosecutors in New York bring fair cases, they won’t have to worry about jury nullification. Dropping the case against Mr. Heicklen would let citizens know that they are as committed to justice, and to free speech, as they are to locking people up.
Paul Butler, a former federal prosecutor, is a professor of law at George Washington University and the author of “Let’s Get Free: A Hip-Hop Theory of Justice.22 December A.D. 2011
To the list:
This is another segment of the on-going debate between those living in the world of “what should be,” namely FIJA and Heicklen and the supporters of one of the concepts on which this nation was purportedly founded, and those living in the world of “what is,” including the federal grand jury and the prosecutors of that case.
The article forwarded below is a pro-Heicklen argument by a law professor who is a former prosecutor.
Regardless of how these thoughts may help or hinder Heicklen’s defense, this author’s focus is on FIJA, generally; hence, the inclusion by CC.
For some background, these folks have made the indictment of Heicklen generally available.
This site has another relatively recent discussion on the case.
Here are additional brief discussions.
http://reforml.org/in-the-news/pot-patriotism-plus-jury-nullification-equals-us-vs-heicklen.html (pro Heicklen)
http://www.law.com/jsp/article.jsp?id=1202535168513&slreturn=1 (the case against Heicklen)
For additional background, do a generic search on “Heicklen jury” or similar search terms. There are a considerable number of articles available via the net.
What has been of interest to this author is the report that Heicklen, after the indictment and release on Bail, went right back to doing the very activity for which he was charged criminally. It’s possible that the “injunctive” power necessary to bring that line of activity to a halt right then doesn’t exist, yet, given that this is very likely the first case of its type.
For context and purpose of analogy, let’s review some of the “tax protest” arguments and their end at the hands of the present system. Those advocating, quite correctly, in fact (from the constitution-ist’s point of view), that there’s no “16th Amendment,” have been enjoined from publishing those books and materials. This is the cause associated with William (Bill) Benson and his supporters.
Those advocating that “funny money” cannot be the legitimate basis (in terms of “value”) for an “income tax,” which is the essence of the Irwin Schiff position, have been enjoined from publishing those books and materials.
Those advocating the more recent “Section 861” position, which position completely misunderstands both § 861 and § 862 (out of Title 26), championed by Larken Rose and his supporters, have been enjoined from publishing those books and materials.
There are several other positions that became quite popular, and there are injunctions related to those arguments and the books and materials that “explain” those arguments.
Those doing the advocating claim First Amendment rights to advocate their positions. Seems like a solid place to start. So, what on earth would justify a judicial ruling disallowing anyone from making this or that legal argument, however “wrong” it may be, to whomever? It’s along the lines of inducing criminal conduct. “Wrong” is one thing. Inducing criminal conduct is completely another.
Just to batten down the hatches on the three concepts above, the fact that there is no 16th Amendment, from the constitution-ist’s point of view, which position is 100% correct, is, at the end of the day, irrelevant. They’re 100% correct. If there were a “constitution,” then there’d be no 16th Amend, because none of the amendment procedures was satisfied. But that’s not a line of legal analysis that helps anyone in the area of “income tax” avoid the “income tax” obligation already agreed to be performed. One concept that the tax folks, as in the irs personnel, have been telling us from Day One that we have GOT to internalize as 100% true, correct, and reliable is this. Being a “taxpayer” is 100% voluntary! One must first “volunteer” commercially, by way of one’s very own signature, before that obligation arises. (How we know that fact, and where all that arises, is a course of materials and study available at a relatively expensive price payable in silver. Proving that reality is beyond the scope of this note.) Once we accept what we’re being told about the purely voluntary nature of the entering upon that particular obligation, we see how irrelevant the notion that any Amendment, or any statute, COMPELS anyone into the role or office of “taxpayer.”
What difference does it make? God tells His people to tithe. It’s legally impossible to “tithe” AND pay an “income tax.” Some are caught up in a “timing” debate in their minds; some, in a “matching” program, again, in their own minds. In terms of priorities of obligations, it is, as a matter of law, legally impossible to give God the first fruits where one has an “income tax” obligation. It’s specifically designed to be that way, i.e, as slam on God’s system and on God’s Law. The first fruits are obligated to the “income tax” system, as a matter of law.
(Another way to prove the irrelevance of the 16th Amendment is to prove that we do not now have, and have never had, a “constitution.” That, too, is beyond the scope of this note. To apply that concept in this context, in order to make another point, where we “see” that there is no 16th Amendment (the only way that language could EVER be recognized as law is by judicial recognition of it by the Supreme Court), we must also “see” that there is no 1st Amendment, 2d Amendment, 3d Amendment, etc., and for the exact same reasons that there’s no 16th Amendment. IF that language is recognized as “admissible evidence of law,” it’s NOT because it stands alone as an “amendment.” IF that language is “admissible evidence of law,” it’s solely because the Supreme Court says so.)
In short, “income tax” obligations exist and are fully enforceable, even without a 16th Amendment (as analyzed by the constitution-ists). The 16th Amend. is smoke and mirrors distracting the mind from, and thereby covering up, the actual basis for the “income tax” obligation.
Regarding the position that “funny money” has no “value,” and therefore cannot be, or be a measure of, “income,” the theory sounds great at first. However, to realize that the “funny money” system can’t exist, on the banking side, without the “income tax” system, i.e., they are mutually dependent on the other, it starts to be very self-explanatory that the “funny money has no value” position completely misses the point. In fact, that position completely misses “why” there’s an “income tax” system in the first place.
For the “funny money” system to “work,” there has to be a suitable amount of “cash” available in “the system.” Think of the traditional bath tub with a faucet and a drain. There’s a certain level of water that makes the bath worth taking. Below that amount, we may as well stand outside in a Number 2 tub and hose ourselves down. Above that amount, we’re soaking the floor and whatever carpet may be in the near vicinity, because the water is overflowing the sides of the tub. So, for the tub to be useful, there’s a range of “fullness” that is to be obtained and then maintained.
Since the “funny money’ system produces “available money” by means of loaning it into existence, the faucet is always on. For this reason, the drain is also always open, to some degree or other. The VOLUME of “funny money” coming into the tub varies, which means that the drain will also vary in how far open or closed it may be. Where the “loans” and the “credit” transactions are filling the tub, payments on those loans are draining the tub. Since the payment of the loan extinguishes that much of the “available money,” there has to be a lot more money borrowed than paid off. In the “funny money” system, if everything were paid off, then there’d be no “funny money” in circulation, at all, So, in order that there be “funny money” flowing into the tub, but so as to keep a drain open that doesn’t also extinguish that much of the “available money,” we have this thing called the “income tax.” In fact, “all” “taxes,” ALL OF THEM, serve the purpose of being a “drain” out of the tub of “available money.” (A legitimate system openly depends on tithes, not the appearance of “compelled contributions,” i.e., “taxation.”)
In short, it’s the very existence of the “funny money” that “compels” the need for the “income tax” system. Thus, the “value” of the “funny money” is irrelevant. It’s the “existence” of the “funny money” that gives rise to the “income tax” system. So, to say that there’s “no value” in the “funny money” is to miss the entire point of the “income tax” system.
Regarding §§ 861 and 862, the “sourcing” of “income” is irrelevant to the existence of the “income tax” obligation. What § 861 doesn’t treat as “sourced” in one location (for purposes of “foreign taxes”) is fully made up for in § 862, which identifies the proper concept of “sourcing” for everything not covered in § 861. “Where” “income” is “sourced” IS relevant to certain issues regarding “foreign tax credits.” That which is “taxed” somewhere else is not (necessarily) also “taxed” by the irs. It COULD be; it just isn’t. That which determines how much of what is “taxed” domestically and how much is “taxed” by foreign “taxing” authorities includes a threshold study into where this or that “income” amount is “sourced.” In sum, it matters not one iota “where” the “income” is “sourced.” “Income” is “income,” and where there’s “income,” there’s an “income tax,” regardless of where it’s “sourced.” Sections 861 and 862 become relevant where there are “foreign taxes” paid, and the relevance has to do with the “foreign tax credit” allowed under the “tax code.” In no way does “sourcing” of anything, anywhere, negate the existence of the “income tax” obligation.
Why are we talking “tax” in the “jury” authority context? Because, we’re making the analogy to the 1st Amend. limitation that there is no “right” to advocate criminality. Thus, in sum, in these three (of several additional) examples, the proponents of those positions exercised what they considered to be their 1st Amend. rights of free speech. As we know, no one is allowed to shout “FIRE!” in the midst of the theatre where there is no fire. “Free Speech,” then, isn’t unabridged. There are limits on that “right.” Another of those limits is that line of speech that tends to encourage others to commit crimes. In a “bad case” scenario, where a “taxpayer” doesn’t file a return, that can be a criminal act. In an even worse case scenario, the “taxpayer” who doesn’t pay what’s expected as due and owning can be alleged to participate in “tax fraud.” Thus, information or argument that tends to encourage “taxpayers” to pursue lines of conduct that could put them in line for criminal charges is subject to prevention via injunction. There is no 1st Amend. right to induce people, here, “taxpayers,” into lines of illegal conduct.
There is also no 1st Amend. right to engage directly in conduct that is prohibited. This takes us back to the act of hollering FIRE! where there isn’t one.
What we have in the Heicklen case is the fact that Heicklen is hollering FIRE! where there is no fire. He may also be talking them into doing things, as “jurors,” that they have no authority to do.
What “today’s” constitution-ists have not yet internalized is the “message” being sent to one and all via the general circulation of “funny money.” Most (activist) constitution-ists are at least aware of the language that prohibits any “State” from allowing any Thing but gold and silver Coin as the lawful means of the payment of debts. Yet, while the constitution-ists find no such Thing anywhere in sight, they persist with the notion that “governments” exist, today, as a by-product of their respective “constitutions.” One of the objectives of the communist regime is to get people to hold diametrically incompatible thoughts in their mind, simultaneously, giving each a character of “true.” Where people try to hold onto directly competing ideas, where only one, if either, may be true, they begin to lose the ability to engage in logical, critical thinking. They come “emotionally”-influenced, rather than “logically”-influenced. The opposing concepts here are “funny money in general circulation” and “constitutional government.”
It’s impossible, as a matter of law, for any “constitution” to be viable source of law where there is no honest system of weights and measures providing the basis for that system’s “currency.” That which circulates as “money” is the best evidence of that system’s foundational choice of law. Thus, where gold and silver Coin circulate generally, the system’s foundational choice of law is the Law of the Land (the origin of which is, of course, Scripture). By that exact same “definition,” where what circulates is “funny money,” then thatsystem’s foundational choice of law is the Law of the Sea. “The” reason for the Philadelphia convention (1787) was the intent to curb the States, forever, of the addiction to the use and circulation of “funny money.” Not one single, solitary thing about the (national) “constitution” even remotely contemplated or tolerated “funny money.” The “constitution” existed to render “funny money” illegal.
“Constitutions” are “package deals.” They’re “all or nothing.” Thus, where there’s even one piece missing, it’s not just that one piece that’s missing. It’s the whole that is missing.
Thus, where there is no honest system of weights and measures in general circulation, there is no “constitution.” Period.
The paradigm shift is wicked, perhaps because the concepts at issue are pretty basic.
Therefore, those today who advocate a Venire system and a Grand Jury system that look to the Common Law, i.e., the Law of the Land, for its source of authority and justification, have no idea, at all, whatsoever, of what they’re dealing with “today” when it comes to the appearance of “government.”
Yes, we USED to have those notions in general application. We USED to. We DON’T right now, and for so long as “funny money” is what is used for the medium of exchange, we WON’T.
Even after FDR, the traitor to America that he was and shall always be remembered as being, “confiscated” gold, NOTHING prevented us from continuing to use gold and silver in our commercial activities. Nothing. Even after “they” assassinated JFK so as to take all the remaining vestiges of honest weights and measures out of circulation, namely the still-circulating silver coins, NOTHING prevented us from continuing to use gold and silver in our commercial activities. Nothing. Yet, here we are today, still hearing from those who have become quite content with, addicted to, actually, the regular use of “funny money” that “government” is founded upon a “constitution,” i.e., upon the Common Law, i.e., the Law of the Land. This may seem a strong statement to some, but here it is, anyway. These good people are the perfect by-product of the communists’, uh, the “government’s,” “public education system.” They are quite content to hold mutually exclusive concepts in mind and consider each “true.” (It took a while for this author to work through that mind-bender, as well.)
We cannot have a “constitutional” system without honest weights and measures. Period.
Where there is no “constitutional” system, there is no Common Law Venire (in the courtroom), and there is no Grand Jury (in the Grand Jury room). What we have are the look-alikes that tend to appease the masses via the same-name-game by which those substitute organizations do business.
The bodies that participate at trial are not the Venire. They are administrative advisory panels. Their oaths are to the judge, not to the law, generally. To tell the prospective (or serving) administrative advisory panelists about the Common Law system to inform them as to the differences between “then” and “now” is one thing. To tell them they have authority they do no have is completely another.
We’re talking about the differences between, say, New York, and NEW YORK. Heicklen, and FIJA, et al., see all prospective jurors as functioning in New York. The reality is that they are prospective members of administrative advisory panels, and they are functioning in NEW YORK. There are a lot of laws of NEW YORK that are very similar to the laws of New York, but there are some critical differences. In New York, the circulation of “funny money” would be a crime, whether “just” “fraud” or also Treason would be up to the Grand Jury. However, in NEW YORK, the circulation of “funny money” is completely lawful. In New York, the Venire WOULD be instructed per the Georgia v. Brailsford language, namely that the Venire WOULD have the full authority to determine not only all the “evidence of fact” but also all the “evidence of law.” In NEW YORK, the administrative advisory panel members have the authority to determine only that much of the whole of the FACTS that are permitted to be admitted into evidence, and they are NEVER allowed to “vote” on the competence or morality of the law on which that case is based.
The documentation of these differences is a critical function to be done. Lysander Spooner served that extremely vital role in 1852 in response to the Fugitive Slave Law case presided over by Peleg Sprague. (Those with a hankering for the meanings of names will find a VERY valuable and telling lesson by learning the meaning of that judge’s name(s).) It was in response to the very same type instructions then as exist today that Spooner wrote his marvelous work, “An Essay on the Trial by Jury.” He had the same misunderstanding about the differences then that Heicklen, and FIJA, and those who see this one that way, have today. They “see” the differences, but they don’t see the changes that allow or tolerate those differences. They “see” that they’ve traveled from Great Britain to Germany, but they don’t want to accept the reality that Germany has its own rules about things. They are not necessarily the same as Great Britain’s on all points.
This is not the first time this author has openly opposed the work of FIJA. It likely will not be the last. What many don’t know is that this author knows several people who have been either quite active in FIJA or who have been recognized in their commitment by holding leadership positions in FIJA and/or in local groups advancing the FIJA message. The respect this author has for those individuals just makes all the more difficult the continuing need to drag them kicking and screaming into and through this rather wicked paradigm shift.
We’ll know when the FIJA leadership “gets it.” Here’s how we’ll know. They’ll take the exact same materials that they have right now and “reverse” the focus of their lessons. For FIJA to accomplish what is possible to accomplish in the present system, they’ll use their materials to teach today’s administrative advisory panelists NOT that they’re Veniremen but rather that they’re administrative advisory panelists. They’ll FULLY INFORM those administrative advisory panelists the critical nature of following the law exactly as the judge gives it to them, rather than to think for themselves as they would have a duty to do under the system that their forefathers intended that they inherit. They’ll FULLY INFORM those administrative advisory panelists how “evil” the Founding Fathers must have been ever to even to contemplate a world free from tyranny. They’ll FULLY INFORM those administrative advisory panelists how “evil” the “constitution-ists” are, today, for ever even thinking that the Law of the Land is the preferable body of principles on which to base a governmental structure than the commercial law of man, especially that so brilliantly defined by the international banking cartel, and how wonderful are the international banking cartel leaders, and how one must strive to be allowed, someday, to kiss the rings of each of the tyrants collectively working to enslave everyone to do their bidding. Until FIJA, and their people, FULLY INFORM today’s administrative advisory panelists of the virtue of voluntary bondage to the international banking regime, FIJA is failing not only themselves BUT ALSO THIS NATION!
Until they can stand on every street corner in America and advocate the “BENEFITS” of VOLUNTARY BONDAGE, they can’t even help themselves, much less anyone else.
(In other words, if FIJA can’t teach the reality through exaggerated opposition, then they can’t accomplish their goals, and they should fold up their tents and go home. Of course, if the FIJA people REALLY want to solve these problems, they’ll start teaching individual responsibility and the commercial nature of the present system, so that people don’t end up in trial situations any more than absolutely necessary in the first place. “Treating” the “trial system” is valuable, but it’s not that much different from putting ice on a severed limb. It’s good first aid, but better is to teach prevention techniques so that the limb isn’t severed in the first place.)
And, between now and the time they prove that they “get it,” at least in regards to the differences between the Venire and today’s administrative advisory panels, we’ll be able to measure their initial progress by whether they ever start to trade, or even speak, in terms of the very Money system they presently defy, namely honest weights and measures.
FIJA has an opportunity, here, in the Heicklen case, to make their case, about the differences. They are 100% correct about the differences, but they still think they’re in Kansas. They are not still in Kansas. There is no “constitution.” There is no Venire. There are no Grand Juries. Everything is designed by the international banking cartel to BENEFIT tyranny, rather than to oppose tyranny. “We’ve” “voted” for this type of tyrannical system since the mid-1960’s, i.e., after the silver was removed from general circulations and we stopped using our own minds on the matter and just did what we were told to do without asking questions. We’ve “voted” by means of using “funny money” instead of honest weights and measures. In so doing, we’ve fully exercised our rights relevant to commerce and have “spent” our way right into the clutches of the international banking regime(s).
We have “rights,” even in “this state.” We absolutely do. One of those is the “right” of “free speech.’ But, while there IS a right, even recognized in “this state,” of “free speech,” the 1st Amend. recognized in “this state” does not in any way recognize a right to tamper with prospective (or serving) administrative advisory panelists. They are NOT “Veniremen.” They are not serving in New York. They are administrative advisory panelists serving in NEW YORK.
Heicklen, and FIJA. fully “see” the functional differences between the administrative advisory panel and the Venire, despite the similar names, “Jury.” But, they’re buying into the same-name-game trap. Thus, FIJA’s opportunity, here, is to expose the same-name-game trap and to call administrative advisory panelists what they are, and to teach them NOT TO EXERCISE the authority they WOULD have IF they were Veniremen, as the Founding Fathers intended that we all should be when serving in that role, office, and capacity.
Thus, FIJA will accomplish everything that is possible to accomplish in our present situation by presuming that all administrative advisory panelists WANT to be Veniremen so that FIJA’s role is to INFORM them FULLY of the disasters that may happen if they were to act as Veniremen, i.e., in accord with the concepts in place at the start of this nation, which start existed for many purposes, one of which was (AND STILL IS) to render tyranny illegal.
Harmon L. Taylor
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